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A new Australian damages benchmark in Internet defamation

by Jeremy Malcolm2

Perth academic Dr Trevor Cullen rues the day that he crossed swords with retired American lawyer Bill White, but the very public stoush that has played out over the Internet in the ensuing years has at least now provided Dr Cullen with a damages award that sets new ground for online defamation cases in Australia.

On 3 September 2003 the Supreme Court of Western Australia awarded1 Dr Cullen $70 000 in compensatory damages, with an additional award of $25 000 by way of exemplary damages, for a series of libels published by the defendant on various Web sites, including several sites that contained Dr Cullen's name in their domain name.

The award was determined by Master Newnes of the Court at an assessment of damages hearing following the entry of judgment in default of the defendant's appearance. In his reasons for decision, the Master stated:

The conduct of the defendant can be attributed only to a conscious desire on his part to cause the plaintiff the maximum amount of damage, hurt and embarrassment by what amounts to a campaign of deliberately offensive vilification.

Since liability was not an issue the case does not establish any new principles specific to online defamation, although it did apply the principle from Gutnick's case that words published on the Internet overseas, that are accessible in Australia, can amount to a defamation committed here.2 The case's principal significance however lies in the new ground it establishes as to quantum of damages in serious cases of Internet-based libel.

Factual background

The plaintiff and defendant first met while teaching at the Divine Word University ("DWU") in Papua New Guinea. Dr Cullen alleges that White was dismissed from that employment for acting in a threatening and provocative way towards other staff (a charge which White denies, saying that he in fact resigned). In any case since his departure from the University, White began a campaign to discredit many of his former colleagues, including Dr Cullen.

After leaving DWU, Dr Cullen completed doctoral studies in journalism at Queensland University. While there, the staff and University executive were sent email messages by White accusing Dr Cullen of academic fraud amongst other charges. Before long, White had also established a series of derogatory Web pages about his former colleague. The prominence of these emails and Web pages made it very difficult for Dr Cullen to obtain employment in Queensland following his doctoral graduation.

Dr Cullen therefore moved to Edith Cowan University at Perth in January 2002, and White moved his attention to staff members at that University, bombarding them with allegations against Dr Cullen of fraud and now also pedophilia, and referring them to his numerous Web sites. White also made contact in similar fashion with journalism schools in Australia and newsrooms throughout the Pacific region.

In April 2002 Dr Cullen sued White in the Supreme Court of Western Australia, obtaining leave to serve his former colleague in California which was White's place of residence. After some delay occasioned in part by the difficulty in effecting personal service on White, judgment was obtained in default of his appearance in 9 December 2002.

The law

The previous leading case on the quantum of damages to be awarded for a defamation committed by publication online is the case of Rindos v Hardwick.3 That case, like the present, involved libel committed against an academic by means of a message posted on the Internet (in that case, there was also an off-line libel by means of a letter to the secretary of the Anthropological Association of Western Australia).

The imputations that the Court accepted as arising from the defamatory words published on the Internet in the Rindos case were firstly that the plaintiff had engaged in sexual misconduct, in particular paedophilia with a "local boy" called "Puppy", and secondly that the plaintiff had no genuine academic ability in his field and had not based his theories on appropriate research but had simply depended upon berating and bullying others.

His Honour Ipp J of the Supreme Court of Western Australia, also in default of defence, awarded the plaintiff damages of $40,000 plus interest. Although a number of other Western Australian cases have since arising involving defamation committed on-line,4 the Rindos case remained the benchmark both as to liability and quantum until Dr Cullen's case was heard this year.

Imputations found

The false imputations which were alleged to arise from the words published of the plaintiff directly in Dr Cullen's case were that Dr Cullen:

  1. was a pedophile;
  2. had committed academic fraud;
  3. had falsified his credentials;
  4. was a dangerous felon;
  5. had committed blackmail; and
  6. had falsely pretended to be a priest.

Master Newnes accepted that these imputations arose from the Web pages of White that were led in evidence before him, and the Master considered that it was established that the plaintiff has suffered distress, humiliation and embarrassment, and damage to his reputation, as a result of their publication.

Factors rendering the libels more serious than that in the Rindos case and the award of damages therefore more substantial, included the following:

  • At the time the Rindos case was decided, only 23 000 people worldwide had access to the Internet,5 whereas in 2003 the court could take notice of the fact that substantially more have such access.
  • The defamatory material in the Rindos case have expired after “a number of days or weeks”,6 whereas in the present case the defamatory material continued to be present and accessible up to and beyond the date of the assessment of damages.
  • Only one libel was published on the Internet in the Rindos case, whereas a great many were published of the plaintiff in Dr Cullen's case.

In submitting that the case was at the most serious end of the scale of libels, the plaintiff sought damages in the order of $80 000, together with exemplary damages in the order of $30 000 for the defendant's continuing contumelious disregard for the plaintiff's rights. The awards respectively of $70 000 and $25 000 indicate that the court broadly accepted these submissions, with the Master noting:

I am satisfied that the defamatory publications are likely to have a very harmful effect upon the plaintiff's reputation and his standing as an academic. I also accept that the plaintiff has suffered a great deal of personal distress and anguish as a result of the publications and that they have caused him very considerable annoyance. It is likely that they will make it more difficult for him to obtain appropriate employment in the future. The damages award must compensate him in respect of those matters and be sufficient to signal to the public the vindication of his reputation.

Conclusion

Although the judgment has not been satisfied and most of the offending Web pages remain online, due to the difficulty and expense attendant upon the registration of an Australian defamation judgment in the United States, Dr Cullen has nonetheless scored a moral victory, and the judgment in his favour sets a new high water mark in the quantum of damages awarded for defamation in an online context which will be useful to future plaintiffs.

Disclaimer: the author acted as counsel for Dr Cullen.

  1. Cullen v White [2003] WASC 153.
  2. Dow Jones & Company Inc v Gutnick [2002] HCA 56.
  3. Rindos v. Hardwick Unreported Judgement 940164, Delivered 31 March 1994, Supreme Court of Western Australia, Ipp J.
  4. See The Buddhist Society of Western Australia v Bristile Ltd [2000] WASCA 210, and Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270.
  5. Rindos v Hardwick, op. cit.
  6. Ibid.
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